Thirumayee Ammal vs Palaniappa Gounder

The decree-holder in O. S. No. 370 of 1969 on the file of the District Munsif Court, Palani, has filed this civil revision petition on being

aggrieved that the learned District Munsif has allowed the application filed by the respondent who is a decree-holder in O. S. 330 of 1970 on the

file of the same District Munsif Court for rateable distribution u/s 73 of the Civil Procedure Code.

The petitioner herein obtained a money decree in O. S. No. 370 of 1969 on 18-8-1969 and brought the property of the judgment-debtor for

sale in execution and purchased the same on 15-6-1970 after having obtained leave from the executing court to bid and set off. The respondent

obtained a money decree in his suit O. S. 330 of 1970 on 29-6-1970 after the sale had been concluded in favour of the petitioner herein but

before confirmation.

The only question for consideration in this petition is whether the respondent decree-holder in O. S. 330 of 1970 who had obtained a decree on

29-6-1970 admittedly after the sale had been concluded in favour of the petitioner who had obtained leave to bid and set off, is entitled to claim

rateable distribution.

Section 73 of the CPC clearly provides that the applicant-decree-holder for rateable distribution must file the application before the receipt of the

assets by the executing court. The point for consideration is where the decree-holder had purchased the property in auction after having obtained

permission to bid and set off, the court should be deemed to have received the assets on the date of the sale.

In Sait Punnamchand Chatraban, Firm of Marwadi Bankers Vs. Vijjapu Satyanandam, a Division Bench of this Court has answered the

question in the affirmative and the learned Judges have observed that, when a decree-holder has been given permission to bid and set off, and

when the amount of the successful bid is less than the decree amount the whole of the set off must be deemed as made on the date of sale and that

the whole of the amount must be deemed to have been received or realised eo instante the sale is made and Section 73 will give no benefit to the

other decree-holders who apply for rateable distribution after the conclusion of the sale however soon after its conclusion their applications may be

made. I am bound by this decision.

In this case, the decree amount is Rs. 5,100 and the sale price is Rupees 5,000 and it necessarily follows that application by the respondent

decree-holder for rateable distribution is not maintainable.

The executing court has in allowing the respondent''s claim for rateable distribution purported to rely on a decision of a Full Bench in N.V.E.

Nachiappa Chettiar Vs. N.A.K. Subbier and Others, . The facts in that case are, however, clearly distinguishable and it is seen from the judgment

that the assets have not been realised by the court on the date when the applications had been made. In the suit filed by S an application for

attachment before judgment of the goods was made and the sale proceeds were deposited into court towards the credit of the suit on 11-4-1917.

In the meantime, another decree-holder N attached the money in court deposit before judgment and obtained a decree on 19-4-1917 and applied

for payment on 7-6-1917. Meanwhile another decree-holder R obtained a decree on 29-6-1917. It was only thereafter that S obtained a decree

on 2-7-1917 and applied for payment out on 3-7-1917. It is obvious that in that case the assets have not been realised by the court. The

applications for rateable distribution have been made before such a realisation.

In the result the revision petition is allowed but under the circumstances without costs. The application filed by the respondent herein for rateable

distribution is dismissed, but without costs.

Revision allowed.